Andrew Gilden, Preserving the Seeds of Gender Fluidity: Tribal Courts and the Berdache Tradition (1988)

Since acquiring greater legal and political sovereignty after the enactment of the Indian Reorganization Act of 1934, Native American tribes have strived to reverse several centuries of socioeconomic subordination and assimilation by restructuring their societies in accordance with traditions suppressed under colonial rule.  By constructing legal relationships in terms of traditional duties and responsibilities, tribal courts in particular have laid the foundations for reclaiming these seemingly lost traditions.

One tradition effectively eradicated under Euro-American domination was a comparatively fluid understanding of gender.  A substantial number of tribes recognized a gender role, generally referred to as berdache, which was predominantly defined by the acquisition of the socioeconomic role of the opposite biological sex.  Because this identity was incompatible with the strict Euro-American linkage of sex and gender, the berdache tradition became a casualty of repressive colonial policies.

This paper outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts’ re-infusion of such characteristics into contemporary jurisprudence.  By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the berdache tradition’s rise, fall and potential reemergence can be analyzed as resulting from shifts in its determinative cultural elements. 

Revised July 23, 2003 (MD)